IMPORTANT POINT
The impugned order was not appealable under Section 10 of the Act of 1966, and the direction sought by the appellant to produce bank statements for the period 1999-2004 was not maintainable at the stage of recording of evidence.

JUDGMENT

Manmohan, A.C.J. (Oral)

1. The present appeal has been filed under Section 10 of Delhi High Court Act, 1966 (`Act of 1966') impugning the order dated 5th January, 2024 passed in Test Cas No. 47/2000 (`Impugned Order') whereby the learned Single Judge directed the official witness i.e., PW-17 [officer of Union Bank of India] to trace the relevant record with regards to the two saving bank accounts of late Shri Kasturi Lal Malhotra for the years 1999-2004 as expeditiously as possible and latest within four weeks from the date of the said order, failing which the Local Commissioner has been directed to close the evidence of PW -17.

2. Appellant is the son of late Shri Kasturi Lal Malhotra, who expired on 13th September 1999. The Appellant filed TEST CAS No. 47/2000 to prove the registered Will dated 18th January, 1999 said to be executed by his deceased father. The issues were framed on 03rd July, 2009 and the recording of evidence commenced before the Local Commissioner in August, 2009, but remains pending. The Appellant has completed recording the evidence of sixteen witnesses and the issue in the present appeal is with respect to time bound directions to the last witness PW-17.

3. Learned counsel for the Appellant states that PW-17 is the last official witness. He states that the said witness appeared for the first time on 10th November, 2023, 15th December, 2023 and thereafter on 05th January, 2024. He states therefore, there has been no delay in recording of the evidence of the said witness contrary to the findings of the impugned order. He states that the delay has occurred as the record which the witness is required to produce pertains to the year 1999-2004 and it is on account of Union Bank of India's own administrative protocol that the witness has sought adjournment to trace the old record. He states that PW-17 has made attempts on 15th December, 2023, 19th January, 2024 and 02nd February, 2024 to locate the old records. However, the same have been futile. He states that in these facts, the learned Single Judge ought not to have passed the pre-emptive directions in the impugned order. He states that the production of said documents is necessary to enable the Appellant to prove his allegation of use of funds by the Respondent Nos. 2 to 4.

4. The learned Single Judge by the impugned order has, after taking note of the conduct of the proceedings passed a pre-emptive order that if PW-17 is unable to locate the bank statements for the period 1999-2004, in four weeks' time the Local Commissioner shall close the evidence of PW-17.

5. The impugned order is, admittedly, not appealable under Order XLIII Rule 1 CPC. We are of the considered opinion that the impugned order is not appealable under Section 10 of the Act of 1966 and is therefore not maintainable. The impugned interlocutory order does not satisfy the test of a `judgment' within the meaning of Section 10 of the Act of 1966, as per the parameters laid down by Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8, which is the test to be applied as held by the Full Bench of this Court in Jaswinder Singh v. Mrigendra Pritam Vikramsingh Steiner, 2013 (133) DRJ 1 (FB).

6. Even otherwise, this Court is of the opinion that the direction sought by the Appellant to Union Bank of India for the first time in the year 2023, to produce bank statements for the period 1999 till 2004 is, itself, not maintainable at the stage of recording of evidence. The Appellant has cleverly converted the stage of recording of evidence into the stage of discovery.

7. The present probate proceedings were instituted by the Appellant in the year 2000 and the document which is sought to be summoned from the Union Bank of India is for the subsequent period i.e., 1999 to 2004. The Appellant should have at the contemporaneous time i.e., 2004 obtained the certified copies of the said documents from Union Bank of India and placed it on record in the trial as is permissible under the Banker